Volume Ii Part 61 (2/2)

Although the Declaration of London metes out the same punishment for the several kinds of unneutral service which it enumerates, it nevertheless makes a distinction, apart from the penalty, with regard to the treatment of the vessels captured for rendering unneutral service.

Article 45 provides for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in this article a treatment which is, in a general way, the same as that for a neutral vessel captured for the carriage of contraband. This means that the vessel does not lose her neutral character, and must under all circ.u.mstances and conditions be taken before a Prize Court, unless--see article 49 of the Declaration of London--the taking of her into a port of the capturing State would involve danger to the safety of the capturing vessel or to the success of the military operations in which she is engaged at the time. And an appeal from the national Prize Courts may be brought to the International Prize Court.

Article 46, on the other hand, provides, apart from the penalty, a treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in this article which, in a general way, is the same as that for a captured enemy merchantman. This means that such vessel acquires enemy character. Accordingly (see above, -- 89) all enemy goods on the vessel may be seized, all goods on board will be presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Further, the rules of articles 48 and 49 of the Declaration of London concerning the destruction of neutral vessels do not apply. Again, no appeal may be brought from the national Prize Courts to the International Prize Court by the owner of the s.h.i.+p except concerning the one question only, namely, whether the act of which she is accused has the character of unneutral service.[879]

[Footnote 879: The question as to whether, if the vessel has been destroyed by the captor, the innocent owners of the neutral goods on board may claim compensation, has to be decided in the same way as the question as to whether the owners of neutral goods on a destroyed enemy merchantman have a claim to compensation; see above, -- 194.]

[Sidenote: Seizure of Enemy Persons and Despatches without Seizure of Vessel.]

-- 413. According to the British[880] and American practice, as well as that of some other States, which has. .h.i.therto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason[881] and Slidell, who had been forcibly taken off the _Trent_, while the s.h.i.+p herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal. Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the vessel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course of her voyage,[882] or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.

[Footnote 880: See Holland, _Prize Law_, -- 104.]

[Footnote 881: See above, -- 408, p. 519, note 3.]

[Footnote 882: Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat _Volturno_, after having overhauled, in the Red Sea, the British steamer _Africa_ going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the _Manouba_ ought likewise to be mentioned here. This French steamer, which plies between Ma.r.s.eilles and Tunis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish pa.s.sengers, who were supposed to be Turkish officers on their way to the theatre of war, were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy a.s.serting that she had only acted in accordance with article 47 of the Declaration of London.]

The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, -- 409, that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question--see above, -- 412--as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in a.n.a.logy with article 47 of the Declaration of London, to be answered in the affirmative.

Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Amba.s.sador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.

[Footnote 883: See Hall, -- 253; Rivier, II. p. 390.]

[Footnote 884: See above, vol. I. -- 129.]

[Footnote 885: See above, vol. I. -- 130.]

CHAPTER VI

VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS

I

VISITATION

Bynkershoek, _Quaest. jur. pub._ I. c. 14--Vattel, III. -- 114--Hall, ---- 270-276--Manning, pp. 433-460--Phillimore, III. ---- 322-344--Twiss, II. ---- 91-97--Halleck, II. pp. 255-271--Taylor, ---- 685-689--Wharton, III. ---- 325 and 346--Wheaton, ---- 524-537--Moore, VII. ---- 1199-1205--Bluntschli, ---- 819-826--Heffter, ---- 167-171--Geffcken in Holtzendorff, IV. pp. 773-781--Kluber, ---- 293-294--G. F. Martens, II. ---- 317 and 321--Ullmann, -- 196--Bonfils, Nos. 1674-1691--Despagnet, Nos. 717-721--Rivier, II.

pp. 423-426--Nys, III. pp. 682-692--Calvo, V. ---- 2939-2991--Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877--Martens, II. -- 137--Kleen, II. ---- 185-199, 209--Gessner, pp. 278-332--Boeck, Nos.

767-769--Dupuis, Nos. 239-252, and _Guerre_, Nos.

189-204--Bernsten, -- 11--Nippold, II. -- 35--Perels, ---- 52-55--Testa, pp. 230-242--Ortolan, II. pp. 214-245--Hautefeuille, III. pp. 1-299--Holland, _Prize Law_, ---- 1-17, 155-230--U.S. Naval War Code, articles 30-33--Schlegel, _Sur la visite des vaisseaux neutres sous convoi_ (1800)--Mirbach, _Die volkerrechtlichen Grundsatze des Durchsuchungsrechts zur See_ (1903)--Loewenthal, _Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden_ (1905)--Atherley-Jones, _Commerce in War_ (1906), pp.

299-360--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 33-34--Duboc in _R.G._ IV. (1897), pp 382-403--See also the monographs quoted above at the commencement of -- 391, Bulmerincq's articles on _Le droit des prises maritimes_ in _R.I._ X-XIII.

(1878-1881), and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, article 63.

[Sidenote: Conception of Right of Visitation.]

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